Southern Cotton Oil Co. v. Henshaw

• Decision Date: 01 May 1890
• Citation: 89 Ala. 448,7 So. 760
• Parties: SOUTHERN COTTON OIL CO. v. HENSHAW et al.
• Court: Alabama Supreme Court

7 So. 760

89 Ala. 448

SOUTHERN COTTON OIL CO. v. HENSHAW et al.

Supreme Court of Alabama

May 1, 1890

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Ejectment. The plaintiffs claim as heirs of Ferrie Henshaw, whose relation to the land and the other facts are sufficiently stated in the opinion. The court refused to charge the jury that if the defendant had held adverse possession for three years, under color of title and in good faith, and made permanent improvements exceeding the value of the use and occupation, including the increase by reason thereof, then the plaintiffs were not entitled to recover any rents. The defendant appeals.

Code Ala. §§ 2702-2705, giving a defendant in ejectment, who has been three years in adverse possession, the benefit of his permanent improvements, provide, inter alia, that the jury must assess their value and also that of the use and occupation, not including the increase by reason thereof which value shall be set off one against the other.

Tompkins & Troy, for appellant.

Brickell Semple & Gunter and Watts & Son, for appellees.

SOMERVILLE J.

1. The deed of Morris, executed on June 14, 1873, to Beebe & Henshaw, conveys an undivided one-half interest in the lands to the grantees, and vests in each one of them as undivided fourth interest as tenants in common. The consideration received by the grantor is recited as moving from Eugene Beebe and Ferrie Henshaw, and the conveyance is "to Beebe & Henshaw, their heirs and assigns." This being the case, although a partnership existed between Beebe and Henshaw, upon the death of the latter the legal title of his undivided fourth interest descended to and vested in his heirs, also as tenants in common with each other, and with Beebe. All the owners must therefore join in order to transfer the legal title to a purchaser. The surviving partner alone had no capacity to make any transfer such as a court of law would recognize. Espy v. Comer, 76 Ala. 501; Lang v. Waring, 25 Ala. 625; Caldwell v. Parmer, 56 Ala. 405; Yeatman v. Woods, 27 Amer. Dec. 452, note, p. 454; McCormick's Appeal, 98 Amer. Dec. 191, note, p. 197. The deed from Beebe to the grantor of the appellant, executed in January, 1887, purports to convey the entire interest of himself as well as of Henshaw's estate, being signed by him both individually and as surviving partner of the late firm of Beebe & Henshaw. Under the principle above declared it operated only to convey Beebe's undivided one-fourth interest, unless the conveyance can derive some force from the power of attorney given to Beebe by Henshaw's heirs, a bearing date August 5, 1879.

2. This instrument, in our opinion, confers no authority to sell these lands. It only appoints Beebe attorney in fact to "settle up all matters growing out of the business of the late firm of Beebe & Henshaw," and to "settle up and divide the estate of the said Ferrie Henshaw among those entitled thereto according to their several rights at law and in equity," and invest him with authority "to do all acts which may be necessary to accomplish said result." Such powers of attorney are ordinarily subject to a strict construction, so as to preclude the exercise by the agent of all authority not expressly given or necessarily implied, as usual and proper in order to execute the agency Cummins v. Beaumont, 68 Ala. 204. It cannot be implied that the sale of the lands was necessary in rder "to settle up and divide" the estate of Henshaw among those entitled. Dearing v. Lightfoot, 16 Ala. 28; Wood v. McCain, 7 Ala. 800; Scarborough v. Reynolds, 12 Ala. 252; Ashley v. Bird, 1 Mo. 640; Rossiter v. Rossiter, 24 Amer. Dec. 62, note, 65, 66; Hay v. Mayer, 8 Watts, 205. The deed executed by Beebe, moreover, makes no reference to this power of attorney, and does not purport to have been executed under its authority. In claiming to convey "as surviving partner" it strongly repels such an inference.

3. The suggestion that the action of ejectment cannot be maintained in the present case without proving a prior demand for possession by the plaintiffs is not sustainable. It is very true that one tenant in common cannot ordinarily maintain such an action against a co-tenant

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without proving an actual ouster, or its legal equivalent; but when the defendant sets up an adverse holding, especially under a written conveyance, and thereby repudiates the existence of a co-tenancy with the plaintiff, as is done here, no proof of a previous demand for possession is necessary. He will not be permitted in one breath to deny the relationship of co-tenant, and in the next to claim the benefits incident to its existence. Harrison v. Taylor, 33 Mo. 211; Peterson v. Laik, 24 Mo. 541.

4. All the other assignments of error, not covered by the principles above announced, with the exception which we last consider as to recoverable rents, are, in our judgment, settled adversely to the appellant by the principles declared in Turnipseed v. Fitzpatrick, 75 Ala. 297, and since reaffirmed in Hairston v. Dobbs, 80 Ala. 589, 2 South. Rep. 147 and Dobbs v. Hairston, 80 Ala. 594, 2 South. Rep. 880. These cases construe sections 2702-2705 and section 2706 of the Code, (1886), and distinctly assert that a defendant cannot at one and the same time claim the advantage of a defense under each of these provisions. He may (1) make a suggestion of adverse possession for three years next before the commencement of the suit, and obtain the benefit of the provisions embraced in sections 2702-2705, which includes the full value of all permanent improvements made by the defendant; or (2) he may set up the fact of possession under color of title, in good faith, and thus acquit himself of responsibility for rents or damages for more than one year...